SCC Online Weekly Rewind Episode 21 ft. Nilufer Bhateja, Associate Editor is out now. The written episode along with the video episode can be watched and read below.
Supreme Court
Elected legislators cannot claim privilege or immunity to stand above sanctions of criminal law: SC rules out withdrawal of criminal case against MLAs in 2015 Kerala Assembly ruckus – Division Bench of Supreme Court upheld the order of the Chief Judicial Magistrate, Thiruvananthapuram, who refused to consent to the application filed by the Public Prosecutor under Section 321 CrPC for withdrawal of a criminal case filed against six MLAs in relation to the ruckus and damage of public property caused by them in an unfortunate incident that occurred in the Kerala Legislative Assembly in March 2015. Earlier, the Kerala High Court too had affirmed the order of the Chief Judicial Magistrate. All attempts of the accused MLAs seeking to claim immunity under Article 194 of the Constitution of India were rejected by the Supreme Court while observing: “Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen.” https://www.scconline.com/blog/post/2021/07/29/elected-legislators-cannot-claim-privilege/
Real test is to check whether the act was directly concerned with official duty: SC quashes criminal proceedings against clerk accused of conspiring with superiors, for want of S. 197 CrPC sanction – Upholding the Rajasthan High Court’s order whereby it had directed that criminal proceedings against the accused−Lower Division Clerk be quashed, for want of requisite sanction under Section 197 CrPC, the Supreme Court held that in cases where a question of requirement of sanction under Section 197 arises, the real test is to check whether the act committed by the public servant was directly concerned with the official duty. https://www.scconline.com/blog/post/2021/07/28/section-197-crpc/
Letter of Intent merely indicates party’s intention to enter into contract; no binding relationship at this stage emerges: SC explains in terms of liability of successful bidder – Supreme Court reiterated that a Letter of Intent merely indicates a party’s intention to enter into a contract with the other party in future. No binding relationship between the parties at this stage emerges and the totality of the circumstances have to be considered in each case. Court was deciding whether, in the facts of the case, the respondent−successful bidder who was awarded a tender by the appellant−South Eastern Coalfields Ltd., was liable for the execution of work by another contractor at the risk and cost of the successful bidder. https://www.scconline.com/blog/post/2021/07/27/letter-of-intent/
AGR Dues | SC rejects Telecom Service Providers’ application for rectification of errors in calculation of AGR dues as misconceived – Supreme Court dismissed a batch of miscellaneous applications filed by Telecom Service Providers (“TSPs”) for allowing rectification of clerical/arithmetical errors in computation of Adjusted Gross Revenue dues. Court was of the view that though the instant applications appeared to be innocuous at first blush, the end result of the relief sought by the applicants in the guise of correction or rectification of the defects or arithmetical errors in calculation of AGR dues, would be recalculation which would amount to alteration in AGR dues. https://www.scconline.com/blog/post/2021/07/26/telecom-service-providers/
SCOTUS
Whether Philadelphia’s refusal to contract with a Catholic agency for providing foster care services unless they agree to certify same-sex couples as foster parents violates the First Amendment? While looking into the question that whether the city of Philadelphia violated the First Amendment by discontinuing to refer deprived children to the Catholic Social Services on account of its refusal to certify same-sex couples to be foster parents due to its religious beliefs about marriage; the Court held that, the refusal of Philadelphia to contract with CSS for the provision of foster care services unless they agree to certify same-sex couples as foster parents, violates the Free Exercise Clause of the First Amendment. https://www.scconline.com/blog/post/2021/07/26/same-sex-couples-as-foster-parents/
High Court Updates
Kerala High Court
On what grounds can pregnancy of a mentally unsound woman be terminated? Is consent of women indispensable? HC answers – Kerala High Court invoked the doctrine of parens patriae while permitting the termination of eight weeks pregnancy of a medically unsound rape victim. In this case, the hapless rape victim was found wandering and was taken by the Police initially to a psycho-social rehabilitation centre and then to the Mental Health Centre. As the relatives of the victim could not be traced, the Superintendent of the Mental Health Centre apprised the plight of the victim to the District Legal Services Authority and the writ petition was filed on that reference, seeking orders granting permission for medical termination of the pregnancy of the victim. https://www.scconline.com/blog/post/2021/07/30/termination-of-pregnancy-3/
Delhi High Court
De-certification of AYUSH teachers; HC sets aside CCIM’s order de-certifying “Teacher Code” of practitioners for working outside their State of registration –Delhi High Court in a very interesting matter has set aside the order of the Central Council of Indian Medicine, whereby, number of doctors teaching at various Ayurvedic colleges were handed de-certification for working outside their State of registration. As per the orders of CCIM Teacher Codes of more than hundred teachers were withdrawn and they were debarred from undertaking teaching activities in the Ayurveda Colleges (BAMS). Court held that orders were vitiated for non-compliance of the principles of natural justice as they were not preceded by a properly worded show-cause notice; not reflected the individual justifications, replies, documents and evidences adduced by the concerned teacher demonstrating his status as a regular full-time faculty and not a ‘Paper Teacher’. https://www.scconline.com/blog/post/2021/07/29/de-certification-of-ayush-teachers/
Karnataka High Court
“There can be illegitimate parents, but no illegitimate children.” HC analyses whether a ‘son’ born out of void marriage be considered for compassionate appointment – In a matter with regard to compassionate appointment, Karnataka High Court made a very significant observation that, children born out of void and voidable marriages under other personal laws, where there is no provision for conferment of legitimacy, must also have equal protection of the law by treating them on par with children born out of void and voidable marriages under the Hindu Marriage Act or the Special Marriage Act, 1954, insofar as the appointment on compassionate basis is concerned, as interpreted by us, under the Regulations under consideration and in light of the judgment of the Supreme Court in Union of India v. V.R Tripathi.
https://www.scconline.com/blog/post/2021/07/29/compassionate-appointment-6/
Punjab and Haryana High Court
“Right to Privacy cannot be raised to create a bubble to scuttle investigation”; HC holds direction to give voice samples is not contrary to Art. 20 (3)- Punjab and Haryana High Court while answering the question as to whether compelling an accused to give voice samples would amount to self-incrimination and hence, is violative of Article 20(3) observed that, “The infringement of Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation nullifying the evidence collected by merely denying that the voice of the tapped phone calls is not of the petitioners and there being no comparables.” High Court held that the directions to take voice sample does not infringe Article 20 (3) of the Constitution of India. https://www.scconline.com/blog/post/2021/07/28/right-to-privacy-2/
Calcutta High Court
Children living in parents’ house are at best licensees: Cal HC says senior citizens’ exclusive residentiary rights to be viewed from prism of Art. 21. In a very significant decision, Calcutta High Court expressed that children and their spouses living in the senior citizen’s house are at best “licensees”. and the said license comes to an end once the senior citizens are not comfortable with their children and their families. https://www.scconline.com/blog/post/2021/07/26/senior-citizens/
Kerala High Court
Declare wild boars as vermin; HC allows farmers to hunt wild boars to prevent destruction of agricultural lands – In a petition wherein the agriculturists voiced their grievance with regard to the destruction of the crops in their agricultural lands on account of large scale intrusion of wild boars from the forest, the Kerala High Court directed the Chief Wildlife Warden to permit the farmers to hunt wild boars to prevent destruction of crops https://www.scconline.com/blog/post/2021/07/27/wild-boars-as-vermin/
Tribunals
SEBI | Financial Racket: Kundra, Shetty into murky waters again | Imposes fine for insider trading on Viaan Industries – SEBI imposed a monetary penalty of Rs 3 lakhs on Viaan Industries and its promoters under the provision of Section 15A(b) of the SEBI Act, for violating Regulations 7(2), 7 SEBI 7(2) (a) and 7 (2) (b) of the Prohibition of Insider Trading Regulations, 2015. https://www.scconline.com/blog/post/2021/07/29/insider-trading/
In case a medical practitioner chooses to follow one procedure instead of another, which turned out to be a failure, Can the said act be negligent? In a very interesting case pertaining to medical negligence, NCDRC remarked that, At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. he medical professional is often called upon to adopt a procedure that involves a higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Further, the Commission observed that, the duty of treating doctor is to decide the method of treatment depending upon the condition of the patients and the circumstances of each case, thus it cannot be construed as medical negligence https://www.scconline.com/blog/post/2021/07/26/medical-negligence-2/
Legislation Updates
Rules for E-furnishing of Forms, Returns etc. introduced vide Income Tax (21st Amendment) Rules, 2021 –The Central Board of Direct Taxes has notified Income Tax (21st Amendment) Rules, 2021 on July 29, 2021 and Rules for E-furnishing of Forms, Returns etc. Have been introduced. Read more details on SCC Online Blog https://www.scconline.com/blog/post/2021/07/30/rules-for-e-furnishing-of-forms-returns-etc-introduced-vide-income-tax-21st-amendment-rules-2021/
Government announces 27% reservation for OBCs, 10% for EWS in All India Quota for UG, PG medical, dental courses – On July 29, 2021, the Government has announced 27% reservation for the OBCs (Other Backward Classes) and 10% quota for the Economically Weaker Sections (EWS) in the All India Quota (AIQ) scheme for undergraduate (UG) and postgraduate (PG) medical / dental courses (MBBS / MD / MS / Diploma / BDS / MDS) from 2021-22 onwards. https://www.scconline.com/blog/post/2021/07/29/government-announces-reservations-of-27-for-obcs-10-for-ews-in-all-india-quota-for-ug-pg-medical-dental-courses/
IFSCA invites public comments on proposed IFSCA (Capital Market Intermediaries) Regulations, 2021 – On July 28, 2021, IFSCA has sought public comments on the proposed International Financial Services Centres Authority (Capital Market Intermediaries) Regulations, 2021. The objective of the Regulations is to enact a comprehensive regulatory framework for the intermediaries in the capital markets operating in IFSC focusing on ease of doing business and consistent with the fundamental principles laid down by IOSCO. https://www.scconline.com/blog/post/2021/07/29/ifsca-invites-public-comments-on-proposed-ifsca-capital-market-intermediaries-regulations-2021/
Cabinet approves amendments to Limited Liability Partnership Act, 2008 and Deposit Insurance & Credit Guarantee Corporation Act-On July 28, 2021, the Union Cabinet has approved the amendments to Limited Liability Partnership Act, 2008 vide Limited Liability Partnership Amendment Bill, 2021 in order to accelerate the ease of doing business for companies and amendments to Deposit Insurance & Credit Guarantee Corporation Act vide Deposit Insurance & Credit Guarantee Corporation Act, Bill 2021 in order to provide account holders access to up to Rs 5 lakh funds within 90 days of a bank coming under moratorium. https://www.scconline.com/blog/post/2021/07/28/cabinet-approves-amendments-to-deposit-insurance-credit-guarantee-corporation-act/
Kerala | “No-dowry declaration” to be signed and submitted by all male government employees within one month of marriage vide circular issued by Kerala Government The Kerala government has issued a circular directing all male government employees to furnish a declaration to their heads of departments within one month of their marriage that they have not taken any dowry vide circular dated July 16, 2021, issued by the Women and Child Development Department. The “no dowry declaration” has to be signed by the employee’s wife, father and father-in-law. The decision comes after Kerala has faced various horrendous dowry related incidents in the past few weeks. https://www.scconline.com/blog/post/2021/07/27/kerala-no-dowry-declaration-to-be-signed-and-submitted-by-all-male-government-employees-within-one-month-of-marriage-vide-circular-issued-by-kerala-government/
